Former President Donald J. Trump claims that the Justice Department is controlled by President Joe Biden and is out to get him. Trump also states that he plans to use the Justice Department as a weapon against his enemies. To counteract these two propositions, we must ensure that the Justice Department is separate and independent of the President of the United States.
The office of the Attorney General was established by the Judiciary Act of 1789 as a part-time job for one individual. George Washington chose the first attorney general, Edmund Randolph, one of the lesser-known Founding Fathers. Randolph was selected as one of 11 delegates to represent Virginia at the Continental Congress in 1779, and served as a delegate through 1782. During this period he also remained in private law practice, handling numerous legal issues for George Washington, among others.
The Constitution did not establish the office of attorney general, the Justice Department or the FBI. In 1789 we were a developing nation with a small population without the need for a large legal bureaucracy.
The Office of the Attorney General and the Justice Department have evolved over the last 245 years. At first, the “Justice Department” had one part-time employee (Mr. Randolph). Now it has more than 100,000 employees, including the Federal Bureau of Investigation.
Trump himself proved that the Justice Department is controlled by the White House. President Trump’s firing of James Comey, and his desire to fire Special Counsel Robert Mueller, demonstrates that we need an independently elected attorney general to run the Justice Department. An independent Justice Department would not be subject to presidential influence or control.
Trump’s control of the Justice Department was not unique. John F. Kennedy appointed his relatively inexperienced younger brother Robert to be his attorney general. President Kennedy joked that he thought his 35 year old brother should get some experience as attorney general before he started to practice law.
President Barack Obama appointed his close friend, Eric Holder to be his attorney general. And Richard Nixon appointed John Mitchell, his close associate, to be the first attorney general to go to jail for his crimes while in office. After his tenure as U.S. Attorney General, Mitchell served as chairman of Nixon’s 1972 presidential campaign. Due to multiple crimes he committed in the Watergate affair, Mitchell was sentenced in 1977 to two-and-a-half to eight years in prison for his role in the Watergate break-in and cover-up. Mitchell served 19 months in Federal Prison Camp, Montgomery (in Maxwell Air Force Base) in Montgomery, Alabama, before being released.
As we elect attorneys general in nearly every state, we should elect the U.S. Attorney General. The office of U.S. Attorney General has been a political, not legal, position for far too long.
An elected attorney general would be independent of the White House — he or she could not be fired by the President. The elected attorney general would be responsible to the people who elected him or her. As the FBI is part of the Justice Department, the elected attorney general would appoint the head of the Bureau.
Of the 50 state attorneys general, 43 are elected. In five states the attorney general is appointed by the governor (Alaska, Hawaii, New Hampshire, New Jersey and Wyoming). In Maine, the attorney general is selected by secret ballot of the legislature and in Tennessee, the state Supreme Court appoints the attorney general.
Trump’s first Attorney General, Jeff Sessions, who recused himself from the Russian inquiry, nonetheless assisted President Trump in his removal of James Comey as head of the FBI. Neither the Attorney General, nor President Trump, had the right to fire the FBI director. Eighty-nine years ago, the US Supreme Court ruled against Franklin Roosevelt’s firing of an FTC Commissioner (Humphey’s Executor v. United States, 295 U.S. 602, 1935).
Director Comey, like Commissioner William Humphrey, was appointed for a designated term and could only be fired for cause. The cause cited by the president was clearly subterfuge — the real reason was to stop Comey’s investigation of the Trump campaign’s connection with Russia. James Comey could have filed suit to challenge his termination, but he apparently decided not to challenge President Trump’s actions, and to write his side of the story in his book, “A Higher Loyalty.”
Let the people decide who should enforce our laws. An independent elected Attorney General would no longer be the president’s puppet, crony or brother. An independent Attorney General would appoint all of the US attorneys without any political assistance from the president or senators. An independent Justice Department and an independent FBI would investigate alleged crimes committed by occupants of the White House without fear of being fired and would improve the public’s level of confidence in the fairness of the legal system.
Joel D. Joseph is author of “Black Mondays: Worst Decisions of the Supreme Court” and “Injustice Department: An Elected Attorney General and an Independent Department of Justice.” Joseph was counsel to the Special Prosecutor Project in the 1970s that sought special prosecutors to investigate the Nixon and Agnew cases.
From The Progressive Populist, July 1-15, 2024
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